Don't Reward Illegal Cuban Arrivals with the Benefit of Adjustment

By Dan Cadman, January 4, 2016

In a series of postings over the past several weeks, my colleague Kausha Luna has outlined the various attempts by Costa Rica to rid itself of about 8,000 Cubans who traveled there on temporary visas. They didn't go for tourism, but with the express intent to travel northward through the other countries of the region, across Mexico, and ultimately to the United States without papers. Once in the United States they hope to avail themselves of that Cold War relic, the Cuban Adjustment Act (CAA), and live long and contentedly despite arriving with no immigration documents, and despite the recent normalization of relations between Cuba and the United States.

Apparently this has become something of a routine path used by Cubans, who can no longer take to the dangerous waters of the Caribbean as balseros ("rafters") up to the Florida Keys without substantial risk of being interdicted and turned back by our Coast Guard. It was a sham in which Costa Rica was happy to play its part until its northern neighbor, Nicaragua, engaged in what they must have seen as the distinctly unfriendly act of refusing to allow the Cubans to enter even for the purpose of transiting northward — leaving them stuck in Costa Rica, probably with diminishing funds and limited capacity to care for themselves without running afoul of Costa Rican law by working illegally.

Seeing Costa Rica hoisted by its own petard in this matter was amusing on many fronts, not least of which is that the whole distasteful smuggling arrangement — and let's not mince words, that's what it amounted to — was undone by Nicaragua, whose government is run these days by the Sandinistas. (Remember them, speaking of the Cold War?)

After a whole lot of disappointment and haggling with other countries in order to do an end-around on the Nicaraguan impasse, it seems that the Costa Ricans, using the auspices of the International Organization for Migration (IOM), have finally persuaded other regional governments to play along and let them flow through, as Luna details in her most recent blog post. The net effect is that these Cubans will be free to move north with the intent of entering the United States without benefit of visas or other permits allowing them to do so, as all of these countries well know. This Faustian pact has a distinctly unfriendly, thumb-in-the eye feel to it from a U.S. perspective.

How should our government react? Unless they're interested in really exacerbating the already complicated mess involving Central American surge arrivals on our southern border (which has never abated, but just left the public's consciousness; see here and here) — and there are signs that the Obama administration realizes this would be a political disaster for Democrats in an election year — then the U.S. government needs to take firm steps, both now and upon arrival of any Cubans who have straggled northward as a result of the "deal" that's been cut, to put an end to the charade, deny the Cubans the ability to make such a mockery of our laws, and in the process ensure the trickle doesn't become a flood.

Assuming that, notwithstanding the lack of any immigration documents giving them the ability to seek admission, some show up at a southern border port of entry (POE), seek asylum, and are given a date and time to reappear at the POE for a "credible fear" threshold interview, they should not be paroled into the United States to permit that interview, for reasons I explain below. And, at the credible fear interview, it should weigh heavily — very heavily — in the asylum officer's mind that these individuals spent months in Costa Rica and transited through several other nations without claiming asylum. One of the prime requisites in both international and domestic law is that if you are truly fleeing persecution, then you seek refuge or asylum at the first opportunity. You don't get to be choosy about where you go. That smacks of abuse of the asylum process, and strongly suggests that such individuals are economic migrants, not people who truly fear persecution if returned to Cuba.

If, as is more likely, they don't show up at POEs, but opt instead to take their chances crossing the border illegally, then when apprehended by the Border Patrol, they should be placed into detention and, as I suggested before, not paroled to await their hearing. They may ask for asylum but, as in the prior scenario, it is fair for government officers and immigration judges to weigh their failure to seek refuge elsewhere in making assessments as to the legitimacy of their claims. Meanwhile, they should be held for the entire pendancy of the asylum and removal hearing process. As long as they are in custody, the provisions of the CAA don't kick in.

Here is the precise language of the relevant portion of the statute: "[N]otwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and has been physically present in the United States for at least two years, may be adjusted by the Attorney General." (Emphasis added.) Thus, if a Cuban illegal entrant is not paroled, he cannot adjust — these individuals would therefore be treated as any other aliens seeking benefits in the United States after attempting illegal entry. What a novel concept!

In addition, it should be made known to Mexico and Costa Rica that aliens ordered excluded or deported will be removed to their territories, whether or not there are existing formal agreements to take in third-country nationals. If they refuse or drag their feet on accepting this pro tem arrangement, the United States should suspend the millions of dollars in aid (see here and here) that are yearly provided to these countries.

Finally, IOM should pay a price for playing a part in brokering this deal to permit smuggled aliens to arrive on our doorstep. They receive millions of U.S. government dollars yearly thanks to various contracts with the United States and the United Nations (which American taxpayers underwrite so generously). Suspend the contracts and that portion of the UN funding from us that flow to IOM. They will get the message.

Meantime (and I know I'm whistling into the wind here), Congress needs to draft and approve legislation amending the Cuban Adjustment Act right off the books. It's not the 1960s any more. Such legislation would put the president into a wonderful election-year pickle if he were to veto it, after everything he and his senior officials have said and done to show that the time is right to deal with the Cuban government and put relations back to "normalcy".